We have had two cases this week from the Court of Appeal and the Supreme Court giving different answers to the question of whether service by email was effective. The Court of Appeal’s reasoning on Tuesday suggests a line of argument not considered by the Supreme Court on Wednesday.

In Barton v Wright Hassall LLP [2018] UKSC 12, by a 3-2 majority, the Supreme Court rejected Mr Barton’s appeal on the question of whether it should order that the steps he had taken to bring a claim form to the attention of the defendant should be treated as good service under CPR 6.15(2).

The CPR deals with service of a claim form in CPR 6.3. Rule 6.3(1)(d) says that a claim form may be served by fax or other means of electronic communication in accordance with Practice Direction 6A. The Practice Direction requires that the receiving party has indicated in writing that it is willing to accept service by electronic means (para 4.1(1)). If a party uses a method not permitted by CPR 6.3 to serve a claim form there is a discretion in CPR 6.15(2) for the court to order that steps already taken by a litigant to bring a claim form to the attention of the defendant is good service.

Mr Barton had emailed his claim form on the last day for its service to the defendant’s solicitors. The solicitors had previously indicated that they were instructed to accept service in an email but had not indicated that they were willing to accept service by email. Service was therefore not effected by a method permitted by CPR 6.3. Mr Barton’s claim would be time barred if the court did not exercise its discretion in his favour under CPR 6.15(2).

Lord Sumption gave the majority’s reasons and referred to the Supreme Court’s previous decision on CPR 6.15(2) in Abela v Baadarani [2013] 1 WLR 2043. The test to be applied was whether in all the circumstances, there was good reason to order that steps taken to bring the claim form to the attention of the defendant was good service. The majority held that that there was not a “good reason”. Mr Barton had not attempted to serve in accordance with the rules (para 21) and had left it to the last moment to serve his claim form (para 23).

The minority’s reasons were given by Lord Briggs. He first considered the purpose of the service rules and identified three objects: (1) to ensure that the contents of the claim form are brought to the attention of the person to be served (2) to notify the recipient that the claim has been commenced and (3) to ensure that recipients and their solicitors have the opportunity to put in place the necessary administrative arrangements for monitoring and dealing with incoming electronic communications. The minority considered that if these three objects were satisfied then prima facie there was a good reason for validating service. On the facts of the case the underlying purpose of the rules had been achieved and Mr Barton’s innocent and understandable mistake did not tip the balance against validation.

All members of the Supreme Court agreed that the Rules Committee should look at the issues raised by the appeal.

A day earlier, in Knight v Goulandris [2018] EWCA Civ 237, the Court of Appeal dealt with the provisions in the Party Wall Act 1996 for the service of documents. The court decided that a Party Wall Act award sent by email had been validly served with the consequence that Mr Goulandris’ appeal against it was out of time. There was no dispute that the email had been received and read by Mr Goulandris but he had not previously indicated that he was willing to accept service by email.

The Party Wall Act 1996 contains provisions in s.15(1A)-(1C) that deal with service by electronic means. Like CPR 6APD these provisions require the recipient to have stated a willingness to receive the notice or document by email.

Sections 15(1A)-(1C) were introduced by the Party Wall etc Act 1996 (Electronic Communications) Order 2016. When passing the 2016 Order Parliament had assumed that the Party Wall Act 1996 as enacted did not permit service by electronic means. The Court of Appeal did not take this assumption as its starting point. Instead Patten L.J. started from the permissive language used in s.15(1) and the rule at common law that a notice is served if it comes to the attention of the receiving party.

Section 15(1) of the Party Wall Act 1996 provides that:

"A notice or other document required or authorised to be served under this Act may be served on a person—

(a) by delivering it to him in person;

(b) by sending it by post to him at his usual or last-known residence or place of business in the United Kingdom; or

(c) in the case of a body corporate, by delivering it to the secretary or clerk of the body corporate at its registered or principal office or sending it by post to the secretary or clerk of that body corporate at that office."

Patten L.J. said that provisions like section 15(1) can be interpreted as providing permissible methods of service without precluding other methods being effectual provided that they result in the document being received. The purpose of such provisions is not to prohibit other methods but, when read with s.7 of the Interpretation Act 1978, to create a presumption that documents sent by post (permitted by s.15(1)(b) or (c)) are received in the ordinary course of post.

It is not uncommon for contracts to provide for methods of service using similar language. The contract cases show two lines of thought. Firstly, that the methods of service given are permissive but if a specified method is used the risk of the document not actually coming to the attention of the recipient is shifted from the server to the intended recipient (see e.g. majority in Ener-G Holdings plc v Hormell [2012] EWCA Civ 1059). The second line is that where permissive language is used and then two or more possible methods of service are given any of the methods can be used but the use of a specified method is compulsory (see e.g. Greenclose Ltd v National Westminster Bank plc [2014] EWHC 1156).

In Knight the Court of Appeal preferred the first approach. Service by email, if it resulted in the recipient receiving the document, was good service under s.15(1) of the Party Wall Act 1996. In doing so the Court of Appeal relied on the meaning attributed to the word “may” by Woolf L.J. in Hastie and Jenkinson v McMahon [1990] 1 WLR 1575 when considering RSC O.65 r.5(1). This provision related to the service of court documents other than originating process and those requiring personal service. It was the forerunner to CPR 6.20. CPR 6.20 is drafted in similar terms to CPR 6.3(“may…be served by any of the following methods”) i.e. the provision that Mr Barton had fallen foul of.

Given that CPR 6.3 is drafted using the word “may” was the Supreme Court majority wrong in Barton? The absence of mandatory language in CPR 6.3 does not mean that the use of a method of service laid down is CPR 6.3 is not compulsory (Greenclose) but it does support the minority’s view that if the three purposes of the rules which Lord Briggs identified have been achieved then there is prima facie a good reason for validating service. Given the narrowness of the decision it is a pity the point was not addressed.

Hopefully, if the Rules Committee heeds the Supreme Court’s unanimous plea to look at the issues raised in Barton it will look carefully at the use of the word “may” in rule 6.3.